Fabian Emmanuel vs Republic (Criminal Appeal No. 197 of 2023) [2025] TZCA 1148 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LILA. 3.A.. FIKIRINI 3.A. And RUMANYIKA. 3.A /1 CRIMINAL APPEAL NO. 197 OF 2023 FABIAN EMMANUEL.................................................................APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Judgment of the High of Tanzania at Arusha) ( Kamuzora. 3 .^ dated the 16th day of November, 2022 in Criminal Appeal No. 146 of 2021 JUDGMENT OF THE COURT 30th September & 17th October, 2025 RUMANYIKA. J.A.: Before the Resident Magistrate's Court of Manyara ("the trial court"), the appellant, Fabian Emmanuel was convicted for rape and armed robbery contrary to sections 130 (1), (2) (b) and 131 (1) and 287A, of the Penal Code, Cap 16, respectively. It was alleged that, on 7th April, 2021 at Maweni Village within Babati District in Mnyara Region, the appellant had carnal knowledge of a 70 years' old lady who we shall refer to as (PW1) in order to protect her dignity. Also they stole an assortment of her items using a panga to instill fear in her. PW1 testified that, on 7th April, 2021 at about 21.00 hours she was home about to get in bed, when she felt some unusual movements around. And that, inquisitively, as she walked towards the main door, the electric lamps got off. She lighted a torch which shined sufficiently and brightly as she had refilled it with new dry cells, aiding her identify the appellant. She added that, the appellant stormed in her bed room straight and languished her. He hit her with a panga blade while demanding money but vainly, before he changed course and raped her. She added that, upon satisfying his sexual desire, the appellant still demanded money with menaces but again unsuccessfully. He blind-folded PW1 with clothes and proceeded to searching the house. Further, PW1 testified that, moments later, it became calm and she went out screaming for a help and that some rescuers arrived at the crime scene. Benson Andrea (PW2) is the medical doctor who clinically examined PW1. He did not notice any bruises in the PW l's private parts except some flour- like substance and greenish mucus on her vaginal cavity walls which exhibited penetration by a blunt object, as shown in the PF3 (exhibit PI). Tabu Mohamed (PW3) is the one who also responded to the alarm raised. She clothed PW2 when she met her half-naked within the vicinity. That they found PW l's bicycle valued at TZS. 200,000.00, a mobile phone make Nokia valued at TZS. 50,000.00, a gas cooker tank 15 kgs, a pair of gam boots valued atTZS. 12,000.00 and a torch valued atTZS. 2,500.00 all swept away. Then she escorted the victim (PW1) to the nearby Magara Health Center for clinical examination following the injuries sustained in the fracas. Next in the list is Hassan Rashid Mohamed (PW4) who also stated that he responded to the crime scene instantly and that PW1 named the appellant to have raped her. WP D/C Efidea (PW5) of CID Magugu Police Station investigated the case opining for the appellant to be charged and prosecuted as such. Upon conviction, the appellant was sentenced to thirty years' imprisonment for each count. Aggrieved, he unsuccessfully appealed to the High Court of Tanzania at Arusha vide Criminal Appeal No. 146 of 2021. Now he is before the Court still protesting his innocence, armed with eight grounds of appeal. They are paraphrased as follows; (i) the appellant was not identified, (ii) the prosecution evidence bore material contradictions and inconsistencies, (iii) the victim (PW1) is not credible, (iv) the alleged material dates in the charge sheet and those in PF3 (exhibit PI) are at variance, (v) the stolen property were not identified by the complainant to be the owner, (vi) the appellant was not found in possession of the alleged stolen property, (vii) the date of the appellant's arrest was not proved and (viii) the prosecution case was not proved beyond reasonable doubt. Out of the ordinary, when it was his turn, the appellant chose not to fend for himself. At the end of it all, the trial court convicted and sentenced him as hinted above. When the appeal came up for hearing, the appellant appeared in person unrepresented whereas Mr. Benedict Kapela, learned Senior State Attorney teamed up with Ms. Rose Kayumbo, learned State Attorney representing the respondent Republic. The appellant, in his submission asserted that, PW1 failed to show how he got his way to the latter's house and forcefully have canal knowledge of her. As such, in the hand-written statement of arguments filed on 26th September, 2025, which he adopted as part of his submission, the appellant stressed on four main complaints. With regard to the issue of identification, he contended that, the condition at the crime scene was not favorable for PW1 to identify him properly by aid of a torch, if at all the electric lamps were surprisingly put off, as alleged. He added that, PW1 did not recognize him because she did not describe him or his attire, if at all she observed him for two good hours as alleged. Therefore, the appellant urged this Court to discount the evidence of PW1 for being unreliable, as observed by the Court in Joshua Soori v. R (Criminal Appeal 66 of 2020) [2024] TZCA 517 (5 July 2024; TanzLII) which he cited to fortify his proposition. About grounds 2 up to 8 of appeal, on the prosecution case not being proved beyond reasonable doubt, the appellant stressed on yet three other main points; One, that the evidence of PW1 and PW5 materially contradicted each other as the latter alleged to have investigated the case on rape only, in exclusion of also alleged armed robbery. Therefore, he urged the Court to disregard that evidence as it rendered the charge incurably defective going to the root of the case. To reinforce his point, the appellant cited the Court's decision in John Julius Martin & Another v. R (Criminal Appeal 42 of 2020) [2022] TZCA 789 (8 December 2022; TanzLII), Two, that it is not clear as to when exactly the appellant was arrested in connection with the charged offences, subject of the appeal. He argued that, the particulars of the offence in the charge sheet and the victim's evidence greatly vary on that aspect and Three, that the evidence put together, the prosecution case was not proved to the hilt. Winding up, the appellant urged the Court to allow the appeal, quash the conviction, set aside the sentence and restore his liberty. Ms. Kayumbo partly opposed the appeal. She asserted that the appellant's conviction and sentence for offence of rape were well founded except for armed robbery which was not proved to the required standard. Nonetheless, Ms. Kayumbo contended, grounds 3 up to 7 of the appeal are new as they were not raised before the High Court for its determination. The appellant's move, she added, contravenes section 6(7) of the Appellate Jurisdiction Act Cap 441 ("the AJA") as this Court is not clothed with jurisdiction to determine issues newly raised at this stage. We agree with Ms. Kayumbo's contention to be the correct position of the law. It is so, because to hold otherwise is tantamount to faulting the learned Judge on issues which she never determined. Grounds 1, 2 and 8 of appeal were argued separately. Regarding identification of the appellant, Ms. Kayumbo contended that, the evidence of PW1 in that regard was not shaken. He argued that it is evident that, although after the appellant stormed in he may have broken the electric lamps, but still PW1 identified him by aid of a bright-light torch down there in the bed room. And that it took the appellant about two hours to accomplish his sexual desire. Ms. Kayumbo further argued that, the seemingly helpless seventy years' old lady (PW1) recognized the appellant at the crime scene without any mistakes for three main reasons; One, she knew him as neighbor who resided about 200 meters away since the appellant's childhood, which evidence was not challenged sufficiently and two, that being a sexual offence which is naturally committed almost at zero-distance proximity, no doubt the evidence of PW1 met such a criterion in Waziri Amani v. R [1980] T. L. R 250. As regards the complaint on contradictions of the evidence of the victim (PW1) and Tabu Mohamed (PW3), Ms. Kayumbo contended that, the first appellate court's Judge cannot be faulted because she evaluated it properly as is clearly appearing on page 88 of the record of appeal. Therefore, Ms. Kayumbo beseeched us to dismiss ground 2 of appeal for being unmerited. On the strength of the evidence of PW1 and its credibility, Ms. Kayumbo contended that, like any other witnesses, the former is entitled to credence and thus, credible as she had such an added advantage as the victim of rape. Cited, were the Court's propositions in Goodluck Kyando v. R [2006] T. L. R 363 and Selemani Makumba v. R [2006] T.L.R 379 to fortify Ms. Kayumbo's point. Additionally, she argued that, the first appellate court may have not discussed on the victim's credibility which this Court is nevertheless to dutifully re-evaluate and arrive at its own conclusion as per the dictates of case law. About ground 8 of the appeal, whether or not the prosecution case was proved to the hilt, Ms. Kayumbo asserted that, it was, because the three ingredients of rape were proved. She argued that, the PW l's private parts were penetrated without her free consent as she was threatened to be cut with a panga by the appellant and that the latter is the perpetrator of that act. 7 In rejoinder, the appellant only reiterated his earlier submission urging us to allow the appeal, to quash his conviction and to set aside the sentence meted on him, restoring his liberty without more. On set, we note that, indeed, save for the 1st, 2n d , and 8th grounds of appeal which were also raised before the High Court and determined by it, grounds 4, 5, 6, and 7 have been newly raised before us. Therefore, we decline to entertain the four points, much as they do not raise any points of law to make them amenable at this stage. As such, we accept, Ms. Kayumbo's invitation, that they being factual and newly raised, the points be discounted as we hereby do in terms of section 6(7) of the Appellate Jurisdiction Act. Cap 141. We have taken this stance on a number of occasions such as in Jumanne Ahmad Chivinja @ Another v. R (Criminal Appeal 371 of 2019) [2021] TZCA 750 (15 December 2021; TanzLII). Flowing from the foregoing in summary, the appellants' complaints may conveniently be narrowed down to two decisive legal issues; One, whether he was properly identified by PW1 at the crime scene and two, whether the offence of rape was proved beyond reasonable doubt. On identification, we recall that the appellant stoutly disputed it asserting that, PW1 didn't describe him in terms of physical appearance and or attire prior. Apparently, it is evidently clear that, the appellant's identification by PW1 was of recognition. The latter consistently testified to have known him since his childhood, and that she had observed him for about two consecutive hours. Very strangely, all those serious and strong accusations from PW1 the appellant was not even bothered to cross examine and impeach her credibility. For ease of reference and clarity we take the liberty to reproduce the relevant part of the evidence of the PW1, as appearing on pages 10 and 11 of the record of appeal reads thus: "On 07/04/2021 around 21;00 hours I was at home. I was in the room for arranging a bed for sleeping. I head a knock from the door... Before I arrived at the door o f the room, the electricity was switched off. Lighted a torch and I saw Fabian Emmanuel. The battery o f torch was new and the light intensity as high...Fabian ordered me to switch off the torch, he attacked me with a side o f panga...I responded...He repeated to bit me with the side o f the panga... he undressed...and started sexual intercourse with me. By then the torch was down there...He went out at the sitting room...and returned back...He went at sitting room and started [drinking] alcohol... (Emphasis added) At least from the quotation above we notice there being two essential facts; One, although PW1 was in terror still she had a little bit relaxed intermediate moments to observe and identify the appellant without mistaking him because of the alleged appellant's extra courage and confident behaviors, as demonstrated above. Two, identification of the appellant was more of recognition than being visualization of a stranger. We are aware of the legal principle, and therefore warned ourselves that, whenever a witness alleges to have recognized a culprit at the crime scene, as it is in the instant case, the court should not rule out chances of mistaken identity. It is so, given the fact that, recognition even of close relatives and friends are sometimes made. See, for instance, the Court's decisions in Jumapili Msyete v. R (Criminal Appeal 110 of 2014) [2015] TZCA 234 (12 August 2015; TanzLII) and Hekima Madawa Mbunda & Another v. R (Criminal Appeal 566 of 2019) [2022] TZCA 138 (24 March 2022; TanzLII). However, we are satisfied, in the circumstances of this case that, PW1 could not have mistaken the appellant's identity, as observed above. Over all is settled law that, identification by recognition may be more reliable than is visual identification of a stranger. To say a little therefore, where the 'i n accused's conviction, as is in the instant case, is solely based on identification by recognition, strict adherence of the criteria in Waziri Amani (supra) as followed by a plethora of authorities automatically becomes uncalled for. Therefore, the appellants' complaints on credibility of PW1 and the like should have not have been raised in the circumstances of the case. Moreover, from what we have endeavored to discuss above, PW1 is not exceptional to the long-established general rule that, every witness is entitled to credence and that has to be believed. See- Goodluck Kyando (supra). Similarly, is the general rule, for instance in Selemani Makumba (supra) which we have to follow, that true evidence of rape comes from the victim, in this case PW1. Therefore, ground 3 of appeal is unmerited and dismissed. Identification of the appellant by recognition apart, we note that, upon closure of the prosecution case and having been dully addressed, the appellant opted not to state his case, as alluded to before. For clarity, on pages 23 and 24 of the record of appeal the relevant part reads thus; "Court: Address the accused [under] the Provisions o f Section 231(1) (a) & (b) o f the Criminal Procedure Act, Cap. 20 R.E. 2019 as to [accused's] right to defend and bring witnesses. Sgd: Kobero SRM 30 / 08/2021 Acccused: "Sitajitetea lolote kwa sababu sina utetetezi wala sina mashahidi wowote nasubiri maamuzi ya Mahakama." Literally means that, when the trial court invited him, the appellant did not have anything to offer in defence. He did not even have a single witness to call in court. He just waited for the verdict. To us, the appellant's move was quite unusual, given the serious nature of the accusations levelled against him. As such, his constructive acquiescence and the unnecessary general denial of the charges left a lot to be desired in the circumstances of the case. Saying so, we are mindful of the distinction between accused's plea to the charge which needs not be detailed and defence evidence. The appellant may have reasons for going for such a permissible but unpopular path to his defence evidence. As such, his conduct was quite unusual as it is inconsistent with the seriousness and gravity of the charged offence. Observing so, we also take cognizance of the sister cardinal principles; that the prosecution has to prove their case beyond reasonable doubt, and that, an accused is not duty bound to prove his innocence. At least the appellant was reasonably expected to have substantially said anything tangible in his defence which he did not. He also failed to cross examine the prosecution witnesses, especially the victim on all material allegations that were laid at his door. As such, in absence of any explanation for his failure to cross examine PW1, in terms of what the Court stressed in Peter Paulo v. R (Criminal Appeal 134 of 2019) [2017] TZCA 326 (14 July 2017; TanzLII) we consider him to have admitted the victim's allegations as all being correct and a true. Moreover, we do not think the cardinal principle that the prosecution is exclusively duty bound to prove their case beyond shadows of doubt was intended to instigate artificial dampness of an accused in the witness box. We note, that, in all fairness it is invariably unjust if an accused would reserve his defence evidence in order to ambush the respondent Republic later on a second appeal. In other words, to allow that to happen is tantamount to attempting to fault the courts below on issues which were never drawn to their attention for determination. We refrain from taking that route. It follows, therefore, that whereas, in any judicial proceedings, the accused fends as of right, his liberty not to marshal defence evidence should be available only when it is preceded at least by one of the following conditions to be recorded by the court; One, where the charged offence was unknown in law, two, where commission of the charged offence was neither probable nor practicable in the circumstances of the case, and three, where the accused had immunity to commit the charged offence. However, we want to clear ourselves that these conditions should not be mistaken for a shift of the burden of proof to the accused as he is certainly presumed innocent until proved guilty. In view of the discussion above, therefore, we are settled in our minds that the prosecution case was proved beyond reasonable doubt against the appellant. Consequently, the appeal is hereby dismissed. DATED at ARUSHA this 17th day of October, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in the presence of Appellant in person, Ms. Eunice Makala, learned Senior State Attorney and Ms. Hilda Mcharo, Court Clerk via virtual Court and; is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL